PATRIOT ACT Section 311 ‘Finding of Primary Money Laundering Concern’

On February 13, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a finding pursuant to Section 311 of the USA PATRIOT Act identifying ABLV Bank of Latvia as a “primary money laundering concern.” FinCEN also issued a notice of proposed rulemaking (NPRM) under that section which, if adopted, would prohibit financial institutions from opening or maintaining a correspondent account in the United States for, or on behalf of, ABLV. In practice, financial institutions (both U.S. and non-U.S. headquartered) often do not wait for such a rule to be finalized but instead move immediately to close out banking relationships with the designated foreign financial institution as soon as the finding and NPRM are announced.

Under Section 311, if FinCEN’s Director finds that a foreign financial institution qualifies as a “primary money laundering concern,” they may propose a rule that would impose one or more of five different “special measures” against it. The most serious special measure, and the one typically imposed, is the fifth, which prohibits U.S. banks from maintaining correspondent relationships with the named foreign financial institution. Proposed rules to impose special measures are made available for public comment and become effective once the rule is finalized.

FinCEN is proposing this action based on its finding set out in the NPRM that ABLV is a foreign bank of primary money laundering concern. In particular, the FinCEN NPRM reports that ABLV has institutionalized money laundering as a business practice and has been involved in the provision of banking services to entities designated by the United Nations – including North Korean entities.  FinCEN also found that ABLV has assisted North Korea in the procurement or export of ballistic missiles.

It should be noted that the last two instances of FinCEN’s use of its Section 311 authority were ultimately resolved in FinCEN’s favor.

  • On May 23, 2017, the United States Court of Appeals for the District of Columbia affirmed the dismissal of a challenge to the U.S. Treasury’s use of Section 311 of the USA PATRIOT Act against Andorran bank Banca Privada d’Andorra (BPA) by the bank’s majority shareholders. Please click here for Crowell’s Client Alert on the BPA case.
  • In April of 2017, the U.S. District Court for the District of Columbia upheld the Treasury Department’s use of Section 311 of the USA PATRIOT Act to impose “special measures” with respect to Tanzanian Bank FBME, Ltd. Please click here for Crowell’s Client Alert on the FBME case.

Written comments on the NPRM may be submitted within 60 days of publication.

On May 23, 2017, the United States Court of Appeals for the District of Columbia affirmed the dismissal of a challenge to the U.S. Treasury’s  use of Section 311 of the USA PATRIOT Act against Andorran bank Banca Privada d’Andorra (BPA) by the bank’s majority shareholders.

The court’s decision provides important support for Treasury’s use of the Section 311 tool, confirming the great difficulties that plaintiffs will face in seeking to challenge, in the United States, the severe actions foreign regulators often take in response to even an initial announcement by Treasury that it is considering using this provision. The decision also provides important guidance to foreign financial institutions and other potential Section 311 plaintiffs on how to preserve their standing to challenge Section 311 actions.

Under Section 311, if the Director of the Treasury’s Financial Crimes Enforcement Network (FinCEN) finds that a foreign financial institution qualifies as a “primary money laundering concern,” she may propose a rule that would impose one or more of five different “special measures” against it. The most severe special measure, and the one typically imposed, is the fifth special measure, which prohibits U.S. banks from maintaining correspondent relationships with the named foreign financial institution. A proposed rule to impose the fifth special measure must be made available for public comment and becomes effective once the rule is finalized.

In March 2015, FinCEN published a Notice of Finding identifying BPA as a “primary money laundering concern” under Section 311, and also issued a Notice of Proposed Rule Making proposing to impose the fifth special measure against BPA. Following publication of the notices, but before FinCEN published a final rule, the Andorran government took control of the bank and developed plans for its liquidation. A month later, two of the majority shareholders of BPA filed suit in the U.S. District Court for the District of Columbia against FinCEN, levying substantive and procedural challenges under the Administrative Procedure Act and the Due Process Clause.

Their two principal claims for relief sought: (1) an order requiring FinCEN to withdraw the notices; and (2) a declaration that the notices were unlawfully issued. The shareholders sought this relief in the hope that a withdrawal of the notices and a judicial determination that both were unlawful would encourage the Andorran Government to reverse its seizure of BPA.

In March 2016, during the pendency of the district court litigation, FinCEN withdrew both notices because the Andorran government had seized BPA and taken measures to strip its “good assets” and transfer them to a new financial institution that would be owned by the Andorran government, and concluding that these steps “sufficiently protect[ed] the U.S. financial system from the money laundering risks previously associated with BPA,” making “the imposition of Section 311 special measures no longer justifiable.” FinCEN then moved to dismiss the shareholders’ suit on the basis that any controversy had been rendered moot. The D.C. District Court granted FinCEN’s motion to dismiss on those grounds on May 18, 2016. Less than two months after the D.C. district court granted FinCEN’s motion to dismiss, on July 14, 2016, the Andorran Government announced that it had finalized the sale of BPA’s assets.

The BPA majority shareholders nevertheless appealed the decision to the D.C. Circuit, reasserting their claims for (1) an order requiring FinCEN to withdraw the notices; and (2) a declaration that the notices were unlawfully issued. The Court affirmed the District Court’s opinion, but for different reasons. While the Court agreed that the first claim for relief was moot because BPA received full relief when FinCEN withdrew the notices, the Court rejected the second claim on the separate basis that the BPA shareholders lacked standing to sue because they had not demonstrated that it was likely, as opposed to merely speculative, that their injuries would be redressed by a favorable decision.

The BPA shareholders argued that a declaration that the two notices were unlawful would redress their injuries because there was “a substantial likelihood that a decision finding that FinCEN improperly labeled [BPA] as a ‘primary money laundering concern’ would materially impact the position of Andorran authorities as to the proper course to be followed with respect to the sale of [BPAs] assets, what should be done with the corporate structure and any assets that remain, and how [BPAs owners] should [] be treated in the process.”

The Court rejected this argument on the grounds that (1) no evidence was presented to show that a declaration that FinCEN violated the APA in promulgating the notices would have caused Andorra to reverse course; and (2) in any case, the window of time to have an impact on the position of Andorran authorities closed after it was announced that the Andorran government had finalized the sale of the assets.

Practical Considerations

The takeaway for banks targeted by any future Section 311 action, or other would-be plaintiffs seeking to challenge such an action, is to prevent any final sale of a bank’s assets by its national regulator that cannot be undone, so as to preserve standing to challenge the Section 311 action.

Overall, however, the decision shows how quick and devastating the actions of foreign regulators can be following Section 311 actions by FinCEN, even before any final rule is promulgated. It reinforces the notion, underlined by a recent D.C. District Court opinion dismissing another challenge to the use of Section 311, that contesting Section 311 actions will remain very difficult.

On April 14, 2017, the U.S. District Court for the District of Columbia upheld the Treasury Department’s use of Section 311 of the USA PATRIOT Act to impose “special measures” with respect to Tanzanian Bank FBME, Ltd.

The court’s ruling allows the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) to proceed with implementing a final rule that prohibits U.S. banks from maintaining correspondent accounts for FBME, and thereby effectively bars it from the U.S. financial system. The court’s decision follows two successful challenges by FBME in August 2015 and September 2016 that had blocked implementation of a final rule.

Under Section 311, if FinCEN’s Director finds that a foreign financial institution qualifies as a “primary money laundering concern,” she may propose a rule that would impose one or more of five different “special measures” against it. The most serious special measure, and the one typically imposed, is the fifth, which prohibits U.S. banks from maintaining correspondent relationships with the named foreign financial institution. Proposed rules to impose special measures are made available for public comment and become effective once the rule is finalized.

FinCEN issued a Notice of Finding on July 22, 2014, that identified FBME as a “primary money laundering concern,” along with a proposed rule to impose the fifth special measure. In the NOF, FinCEN described FBME as the largest bank in Tanzania, but one that conducted 90 percent of its global activity and held more than 90 percent of its assets at a single branch in Cyprus.

FinCEN found, among other things, that FBME had maintained accounts or facilitated transactions for an international narcotics trafficker, an organized crime figure, a financier for the terrorist group Hezbollah, parties engaged in cyber-fraud against victims in the U.S., and a front company related to Syria’s efforts to proliferate weapons of mass destruction. FinCEN also relied on an analysis of suspicious activity reports (SARs) filed by U.S. financial institutions about FBME to conclude that FBME processed large volumes of transactions through U.S. correspondent accounts on behalf of shell companies whose owners could not be readily identified, and conducted other transactions indicative of potential money laundering, such as short-term “surge” wire activity, structuring, and catering to high-risk business customers. After a public comment period, FinCEN then issued a final rule imposing the fifth special measure against FBME in July 2015.

FBME challenged the final rule in the D.C. District Court and sought a preliminary injunction to prevent it from being implemented. The court rejected FBME’s substantive arguments that the agency had failed to adequately demonstrate that the bank was appropriately classified as a primary money laundering concern. It also rejected FBME’s argument that FinCEN could not rely on classified intelligence and SARs summarized in the NOF to support its action without sharing these underlying documents with the target of the Section 311. However, the court ruled in plaintiff’s favor on two procedural issues respecting FinCEN’s adherence to the requirements of the Administrative Procedure Act: first, that FinCEN was required to share with the plaintiff all unclassified, non-privileged information that supported its action and to provide an opportunity for comment on this material, and had not done so; and, second, that FinCEN was required by Section 311 to consider whether some measure short of a complete prohibition on correspondent banking might address the risk posed by FBME. The court therefore enjoined the rule from going into effect.

In response, FinCEN re-opened the rule to solicit comments, this time disclosing unclassified, non-privileged exhibits supporting the final rule to the plaintiff and to the public at large, and, with the permission of the court, conducted a second rulemaking process. The disclosures included 74 exhibits, including press reports, blog posts, public money laundering jurisdictional risk reports from governmental and intergovernmental agencies, and a redacted internal memorandum to the Director of FinCEN providing a staff recommendation for a finding that FBME was a primary money laundering concern. FinCEN also specifically considered whether options short of a prohibition on correspondent banking would adequately address the risks from FBME, and concluded that they would not. FinCEN ultimately issued a new final rule again imposing the fifth special measure on FBME on March 31, 2016.

In a second holding on the new final rule, the court determined that FinCEN had failed to respond to certain non-frivolous arguments the plaintiff had made about FinCEN’s explanation for how the aggregate SAR information available to the agency supported a conclusion that FBME was a money laundering concern, requiring FinCEN to go back and supplement the new rule to address these issues.

In its most recent decision on April 14, 2017, the D.C. District court accepted FinCEN’s responses to the plaintiff’s arguments as reasonable and upheld FinCEN’s final rule, concluding that “[s]ometimes, the third time really is the charm.” The court granted summary judgment to the government and lifted the stay on implementation of the final rule. FBME has appealed the decision to the United States Court of Appeals for the District of Columbia, although that court has declined to stay implementation of the rule during the appeal.

The impacts of the Section 311 action on FBME have been severe. After FinCEN’s initial finding that FBME was a primary money laundering concern, FBME’s U.S. correspondent banks severed their relationships with the bank without waiting for any rule to be finalized. Moreover, the Central Bank of Cyprus placed FBME’s Cyprus branch “under resolution,” and Tanzania’s central bank, the Bank of Tanzania, took over management of FBME’s headquarters in Tanzania.

Following the district court’s most recent ruling, the Bank of Tanzania announced that it had discontinued all banking operations by FBME, revoked its banking business license, and placed it under liquidation effective May 8, 2017. It is unclear whether the bank will survive to complete its appeal.

The court’s ruling that FinCEN must make available the unclassified, non-privileged exhibits as part of the rulemaking process is a significant procedural win that is likely to bring increased transparency to future Section 311 actions. However, this will not pose a significant obstacle to FinCEN’s ability to impose special measure under this section, make future 311 designations, and the case overall remains an important win for the government and a strong initial “stress test” of the Section 311 tool in contentious litigation with a well-represented party. The court upheld FinCEN’s ability to rely on classified intelligence and, moreover, unclassified SARs to support a Section 311 action without disclosing these underlying documents to the target of the action or to the public. It applied a highly deferential standard of review of the agency’s substantive determination that FBME was a primary money laundering concern, and its application of facts to the statutory factors the agency was required to consider in deciding which special measure to impose, requiring only that the agency show that it had considered each factor. It held that FBME was likely not entitled to due process under the U.S. Constitution solely by virtue of holding a U.S. correspondent account and that, even if it was, it would not have been entitled to more process than it received through FinCEN’s amended public rulemaking process. And it rejected FBME’s arguments to re-open the administrative record FinCEN relied on and to conduct civil discovery. Even the court’s procedural holding on access to the unclassified, non-privileged exhibits serves mostly to align Section 311 actions with previous case law in the similar context of sanctions imposed by the Treasury Department’s Office of Foreign Assets Control, where such exhibits are made available to parties challenging sanctions designations.

In addition to FBME, there has been only one other fully litigated challenge to FinCEN’s use of Section 311. In Cierco v. Lew, the D.C. District Court dismissed a challenge to FinCEN’s NOF for Andorran bank Banco Privada d’Andorra as moot because the Andorran regulator responded to the NOF by seizing the bank with intent to liquidate it, prompting FinCEN to withdraw its NOF, concluding that the seizure rendered the bank no longer a money laundering “concern”. Both actions are from one court only – the D.C. District Court, a trial-level court. However, as the only decisions to address this issue, they are likely to carry outsized weight in any future challenge to FinCEN’s use of a Section 311, and to encourage more aggressive use by FinCEN of this tool, much as early OFAC victories on sanctions led to a substantial growth in sanctions designations.

One final issue is whether Section 311, which generally must be done through rulemaking, is affected by the recent Executive Order, 13771, which requires that two rules be identified for repeal for each new one proposed. Because this order excludes “regulations issued with respect to a military, national security, or foreign affairs function of the United States,” an exemption that almost certainly applies here, the order seems unlikely to serve as a brake on increased use of this tool.

Practical Considerations

The unclassified, non-privileged exhibits FinCEN published in the latter FBME rulemaking, and any future publication of such materials in future Section 311 actions, are likely to provide an important new source of information to regulated banks on red flags of potential money laundering activity and concerns that FinCEN and other anti-money laundering (AML) regulators may be focused on.

Banks should monitor any such information disclosed as part of future Section 311 designations, as well as information appearing directly in related proposed rules and findings, as an ongoing part of their compliance operations. U.S. banks that provide correspondent banking services for foreign financial institutions in particular should closely follow such information. Further, U.S. banks across the board should expect that regulators will hold them accountable for awareness of any money laundering red flags that appear in these documents.

Separately, the court’s decision provides important reassurance that SARs filed by regulated financial institutions are seeing use by FinCEN to address money laundering threats, but also that these reports will remain confidential and not be subject to public disclosure in future challenges to Section 311 designations.

On September 20, 2016, the U.S. District Court for the District of Columbia again delayed implementation of a rule by the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) branding FBME Bank Ltd. as a “primary money laundering concern” and effectively severing the foreign bank from the U.S. financial system. The rule, which would prohibit U.S. financial institutions from maintaining correspondent bank accounts on FBME’s behalf, imposes the harshest measure available under Section 311 of the USA PATRIOT Act of 2001, one characterized by the court as “a potentially existential threat to any international bank.”

The court rejected the great majority of FBME’s challenges to the final rule, but agreed with FBME that FinCEN did not sufficiently address FBME’s challenges to the conclusions that FinCEN drew from aggregated data drawn from suspicious activity reports (SARs) filed against the bank. FBME contended that the agency failed to discriminate between SARs representing legitimate and illicit transactions, to consider that the SARs implicated a small proportion of the bank’s overall business, to account for the impact of the Cypriot financial crisis in increasing SARs, and to identify any baseline against which to measure whether the volume of SARs filed on FBME represented a threat. The court ordered that the rule remain stayed until FinCEN provides adequate responses to these arguments. However, the court noted that FinCEN has “immense expertise” in interpreting SAR data, and repeatedly explained its belief that “there is a substantial probability that FinCEN could respond adequately” to the SAR issue on remand.

Moreover, as noted above, the court ruled in FinCEN’s favor on many key issues. It once again upheld the agency’s use of classified information ex parte and in camera in support of special measures, and its reliance on aggregated SAR data without disclosing to the plaintiff the confidential underlying reports. It upheld the sufficiency of the agency’s factual record under a highly deferential standard. It held that FBME likely was not entitled to due process merely by virtue of holding a U.S. correspondent banking account but that, even if it was, it would not have been entitled to more process than it received through participation in the most recent notice and comment rulemaking FinCEN conducted. And it rejected FBME’s efforts to open FinCEN’s compilation of the administrative record to scrutiny. On one issue where it did agree with FBME—that FinCEN should have given FBME the opportunity to comment on findings that its employees attempted to obscure information and that it maintained accounts with multiple associates of Hezbollah, an organization designated by the Secretary of State as a Foreign Terrorist Organization (FTO)—the court found the deficiencies to be harmless.

Impact of the Case on Compliance Programs

The most important potential legacy of this case for regulated financial institutions is the court’s earlier ruling that FinCEN is required to provide for comment all unclassified, non-privileged information that it relies on to impose special measures – a ruling the court affirmed again in its most recent decision. This will increase the amount of information available to banks and other parties subject to anti-money laundering regulation about potential money laundering red flags and issues of concern to FinCEN. Banks should monitor any such information disclosed as part of future Section 311 designations, as well as information appearing directly in related proposed rules and findings, as an ongoing part of their compliance operations. U.S. banks that provide correspondent banking services for foreign financial institutions in particular should closely follow such information. Further, U.S. banks across the board should expect that bank examiners will hold them accountable for awareness of any money laundering red flags that appear in these documents.

This is the second time the district court has delayed implementation of FinCEN’s proposed special measures for FBME, but it seems likely to be the last. Given the overall tenor of the district court’s opinion, the final rule against FBME appears likely to be upheld (subject to any appeal FBME might file). As the first litigated challenge to FinCEN’s use of Section 311, this case will set important precedents that will shape the legal landscape for FinCEN’s continued and perhaps increased use of this authority, much as early decisions in cases like Global Relief Foundation, Inc. v. O’Neill and Holy Land Foundation for Relief and Development v. Ashcroft paved the way for a substantial expansion in targeted economic sanctions administered by the Treasury Department’s Office of Foreign Assets Control.

On May 18, the U.S. District Court for the District of Columbia granted the U.S. Treasury Department’s Financial Crimes Enforcement Network’s (FinCEN’s) motion to dismiss a civil action brought by shareholders of an Andorran privately-held bank, Banca Privada d’Andorra (BPA), challenging FinCEN’s issuance of a Notice of Finding (NOF) identifying BPA as a “primary money laundering concern” and Notice of Proposed Rulemaking (NPRM) to impose special measures against BPA pursuant to Section 311 of the USA PATRIOT Act that would prohibit U.S. banks from maintaining correspondent accounts for BPA. The court ruled that FinCEN’s withdrawal of the notices, following the seizure of the bank by the Andorran financial regulator, rendered the shareholders’ claims moot. This dismissal provides important support for FinCEN’s use of the Section 311 tool, particularly when foreign regulators choose to take action under their own law following the issuance by FinCEN of a finding of primary money laundering concern against a foreign financial institution.

Section 311 of the USA PATRIOT Act (‘‘Section 311’’), codified at 31 U.S.C. § 5318A, grants FinCEN the authority, upon finding that reasonable grounds exist for concluding that a foreign jurisdiction, institution, class of transaction, or type of account is of ‘‘primary money laundering concern,” to require domestic financial institutions and financial agencies to take certain “special measures” to address that concern. The first four special measures include imposing certain recordkeeping and reporting requirements concerning the customers and activities of the targeted institution, while the fifth and most severe special measure authorizes Treasury to “…prohibit, or impose conditions upon, the opening or maintaining in the United States of a correspondent account or payable-through account by any domestic financial institution or domestic financial agency for or on behalf of a foreign banking institution.” The first four special measures may be imposed temporarily by order; the fifth special measure may be imposed only through rulemaking.

In March 2015, FinCEN published a NOF identifying BPA as a “primary money laundering concern” and, accordingly, also issued a NPRM proposing to impose the fifth special measure against BPA. See 80 Fed. Reg. 13464, 13464 (Mar. 13, 2015); 80 Fed. Reg. 13304, 13304 (Mar. 13, 2016). FinCEN explained in the NOF that its finding was based on its conclusion that several of BPA’s high-level management had facilitated financial transactions on behalf of third party money launderers providing services for individuals and organizations involved in organized crime, corruption, human trafficking, trade-based money laundering, and fraud, and that BPA had weak anti-money laundering controls that had allowed its customers to conduct transactions through the U.S. financial system that disguised the origin and ownership of the funds. See 80 Fed. Reg. at 13465-66.

Following the publication of the notices, but before FinCEN published a final rule, the Andorran government took control of the bank and developed plans for its liquidation. A month later, two of the majority shareholders of BPA filed suit against FinCEN, levying substantive and procedural challenges under the Administrative Procedure Act (APA) and the Due Process Clause. In March 2016, during the pendency of the litigation, FinCEN withdrew both the NOF and the NPRM, noting that the Andorran government had seized BPA and taken measures to strip its “good assets” and transfer them to a new financial institution that would be owned by the Andorran government, and that these steps “sufficiently protect[ed] the U.S. financial system from the money laundering risks previously associated with BPA,” making “the imposition of § 311 special measures no longer justifiable.” 81 Fed. Reg. 11648, 11649 (Mar. 4, 2016). FinCEN then moved to dismiss the shareholders’ suit on the basis that any controversy had been rendered moot.

The Court, in granting FinCEN’s motion to dismiss, determined that FinCEN had proven that the shareholders had no reasonable expectation that the alleged violation would recur, because FinCEN lacked any basis for imposing special measures against BPA in the light of the Andorran government’s actions, and that the Court could grant no meaningful remedy given that the BPA shareholders had sought only equitable relief in the form of vacatur of the NOF and NPRM, which FinCEN had already withdrawn. Significantly, in response to the plaintiffs’ claims that only a judicial determination that the NOF and NRPM were unlawful would remedy the damage done to BPA as a result of the preliminary notices – because such a determination might encourage the Andorran government to reverse its seizure of BPA– the Court suggested that the plaintiffs, had they requested it, would not have had grounds for such additional relief because relief under an APA claim will normally be limited to vacatur of the agency’s order. The Ciceros have said that they will appeal the court’s decision.

The case is an important win for FinCEN, in an area with very little case law, because it limits the ability of foreign targets to successfully challenge FinCEN’s findings of “primary money laundering concern” and proposed implementation of special measures in situations where FinCEN later withdraws these notices prior to issuance of a final rule. Such cases are most likely to occur where, as here, a foreign sovereign chooses to take over or liquidate the target of a Section 311 action under its own authorities following FinCEN’s announcement of proposed special measures. This has happened a number of times in the past (see, e.g., JSC Credex Bank (81 Fed. Reg. 14408 (Mar. 17, 2016)); Lebanese Canadian Bank SAL (80 Fed. Reg. 60575 (Oct. 7, 2015)); and First Merchant banks (73 Fed. Reg. 19452 (Apr. 10, 2008)). The Ciceros argued that FinCEN’s conduct demonstrated “a textbook example” of a defendant seeking to evade judicial review of its actions, alleging that FinCEN issues §311 notices so that foreign regulators act to dismantle the foreign bank, then withdraws the notice before issuing a final rule to moot any subsequent challenge. The D.C. District Court rejected this argument, however, noting FinCEN does not always follow this pattern of conduct. In FBME Bank Ltd. v. Lew, for example, FinCEN issued a final rule imposing the fifth special measure against a Tanzanian-chartered commercial bank operating in Cyprus, despite action by Cypriot authorities against the bank. In that case, FinCEN did not withdraw the proposed rule, and plaintiffs were able to successfully challenge the rulemaking proceeding, winning a preliminary injunction against FinCEN’s implementation of the final rule. See FBME, 125 F. Supp. 3d 109, 129 (D.D.C. 2015).

The D.C. District Court has stayed and remanded the FBME case pending FinCEN’s second attempt at rulemaking for the implementation of Section 311 special measures against that bank. To remedy the Court’s concerns that the FBME NOF, NPRM, and final rule together provided insufficient notice to the bank of the basis for the agency’s action, FinCEN reopened the comment period for the rule in November 2015 and published the unclassified and otherwise non-protected information upon which it relied in making its determination. See 80 Fed. Reg. 74064 (Nov. 27, 2015). Following comments on the re-opened rule, FinCEN published a new final rule in March 2016, which FBME likewise has challenged, with cross motions for summary judgment currently before the court for resolution. It remains to be seen whether FinCEN will continue to publish this level of supporting evidence in future Section 311 actions. If FinCEN does make this information regularly available in future Section 311 proceedings, it may provide red flags and other details to banks, in addition to those found already in FinCEN’s NOFs, NPRMs and final rules, useful for identifying money laundering and other suspicious activity, as well as indicators of specific money laundering issues that FinCEN is focused on. FinCEN and other regulators also may expect U.S. financial institutions and financial agencies to keep apprised of and consider such information in designing and administering their anti-money laundering programs and filing suspicious activity reports (SARs).